General, Lasting, Enduring? Which type of Powers of Attorney should you choose?

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Powers of Attorney are legal documents that enable you to appoint someone (known as an attorney) to manage your affairs during your lifetime. The document is based on trust, and who you appoint is your decision whilst you still have mental capacity.

People often incorrectly assume that their spouse, partner or next of kin will automatically be able to make decisions on their behalf if they become unable to do so. Without a Power of Attorney, they will not have the authority to do so.

There are three types of Powers of Attorneys

  1. General Powers of Attorney

This is a document that grants your attorney the power to make decisions for you whilst you have capacity but may not be able to use it. Examples include a hospital stay, a period of recuperation, or if you go on a long holiday. The general power is for a temporary period only. It cannot be used when you lack mental capacity.

  1. Lasting Powers of Attorney

There are two types of Lasting Powers of Attorney:

  • Lasting Powers of Attorney for Property and Financial Affairs

This document will grant your attorney the authority to make decisions about your property and financial affairs, which include:

  • Claiming welfare benefits
  • Opening, closing and operating financial accounts
  • Arranging and managing investments
  • Buying or selling property
  • Paying bills
  • Dealing with tax affairs.

Whilst you still have capacity, your attorney cannot manage your affairs unless you give them specific instruction to do so. If you start to lose capacity your attorney are under a duty to help you make your own decisions for as long as you have some degree of capacity. They must carry out those decisions, even if they believe them to be unwise. If you can no longer make decisions, then they must always act in your best interests.

  • Lasting Powers of Attorney for Health and Welfare

This document will grant your attorney the authority to make decisions about health and welfare should there be a time when you lack capacity to make such decisions on your own.  Such decisions could include:

  • Where you should live
  • Who can contact you
  • The right to access health and social care personal information
  • Consent or refused consent for medical treatment

This document will grant your attorney the ability to make decisions on your behalf only when you have lost capacity.  Your family’s wishes will always be considered by the medical professionals. But without this document, the decisions will be made by your doctor or social services in your best interests.

  1. Enduring Powers of Attorney

These were replaced in October 2007 by Lasting Powers of Attorney. However, if you have an Enduring Power of Attorney dated before the 1st of October 2007, they are still valid.

An Enduring Power of Attorney does not need to be registered whilst you have mental capacity; you can give authority for your attorney to act on your behalf. When you lose mental capacity, your attorney will need to register the Enduring Power of Attorney with the Office of the Public Guardian.

Should there be no appropriate power of attorney in place when you lose mental capacity, the courts will appoint a deputy to act on your behalf. Your next of kin is not automatically appointed. Your family may apply to be your deputy, but it will be up to the courts to decide and this process can be lengthy, costly and stressful in an already difficult time for your family.

In summary, if you’re looking to make plans for your care and finances in the long term, you should be looking to write a Lasting Powers of Attorney. If you have an Enduring Powers of Attorney, you may want to consider changing this to a Lasting version.

Want to know more? We write weekly posts on the law, and you might find these particularly useful:

An A to Z of Wills

Are wills worth the paper they’re written on?

 

For more information, please contact Cay Schofield on 01756 692878 or email cay.schofield@awbclaw.co.uk

1 June 2023

 

External links:

Powers of Attorney – Citizens Advice

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